M

TRUTH AND RECONCILIATION COMMISSION AMNESTY COMMITTEE

©

In the amnesty applications of:

1. Qambelani Buthelezi AM6128/97

<2 > 2. Bhekinkosi Mkhize AM6131/97

© 3. Tebogo Magubane AM6118/97

© 4. Vincent Khanyile AM6124/97

( D 5. Timothy Stals Mazibuko AM6122/97

© 6. JackMbele AM6119/97

© 7. Sonny Michael Mkwanazi AM6120/97

----- 8. Thomas Lukhozi AM7396/97

© 9. Moses Mthembu AM7394/97

C D 10. Mplupeki Tshabangu AM7391/97

© 11. Sipho Buthelezi AM7319/97

© 12. Petrus Mdiniso AM6127/97

©13. Mxolinseni Sibongeleni Mkhize AM6125/97

— 14. Paulos Mcikeleni Mbatha AM6121/97

© 15. Richard Dlamini AM6132/97

Q 16. Victor Mthandeni Mthembu AM 1707/96

HEADS OF ARGUMENT SUBMITTED ON BEHALF OF VICTIMS

In terms of section 20 of the Promotion of National Unity and Reconciliation

Act, No 34 of 1995, (“the Act”) there are three essential jurisdictional facts on

which the Committee on Amnesty must be satisfied before amnesty can be

granted. The three jurisdictional facts are :

1.1 that the application complies with the requirements of the A c t ;

1.2 that the act, omission or offence to which the application relates is an

“act associated with a political objective” ; and

1.3 that the applicant has made a full disclosure of all the relevant facts.

If the Committee is satisfied on all three jurisdictional facts then “it shall grant

amnesty in respect of that act, omission or offence “. (emphasis added)

Conversely, if the Committee is not satisfied on any one or more of the three

jurisdictional facts then the Committee has no option but to refuse amnesty

in terms of section 21 of the Act.

See, in this regard, Commercial Union Assurance Co. Ltd. v Clarke

1972(3)SA 508(A) at 517CS p if. ( 3 ) S ^ 3 3 S ( I " ) ]

It is submitted in limine that the applications of applicants 1 to 15 do not

comply with the requirements of the Act.

Section 18 of the Act provides that:

“(1) Any person who wishes to apply for amnesty in respect of any act,

omission or offence on the grounds that it is an act associated with a

political objective, shall within 12 months from the date of the

proclamation referred to in section 7(3), or such extended period as may

be prescribed, submit such an application to the Commision in the

prescribed form", (emphasis added)

6. The prescribed form referred to in section 18(1) of the Act was promulgated

on 9 February 1996 in Government Gazette No. 16985 (Government Notice

No. R. 238). Section 2 of the Government Notice provides that:

“(1) An application for amnesty in terms of section 18 of the Act shall be

made in the form of Form 1 of the Annexure.” (emphasis added)

7. Form 1 of the Annexure to the Government Notice consists of four pages of

questions aimed at soliciting information to determine whether, prima facie,

an applicant is entitled to amnesty. At the top of the first page of Form 1 it is

stated that the form is “To be completed in block letters, sworn to solemnly

affirmed before a commissioner of oaths and returned to the Committee on

Amnesty”. At the end of the fourth page, provision is made for the

“deponent" to sign and for the attestation by a commissioner of oaths.

8. It is common cause that the period within which applications for amnesty

were to be submitted expired on 30 September 1997.

9. It is further common cause that on 10 May 1997 the Commission received a

telefax transmission of 36 pages from attorneys J.H. van der Merwe Inc. The

transmission consisted of a two page covering letter and the first and fourth

pages of Form 1, purportedly in relation to 17 persons, including applicants

1 to j£ ^ ̂ LvJukbSi^)

10.The first and fourth pages in relation to each of the 17 persons were, for all

intents and purposes, practically identical. All that appeared in each case

was the name and address of the person concerned, his age, a case

number, a charge and a statement that no civil proceedings were pending.

In respect of all other information sought, it was stated that such “will be

submitted”. The fourth page was neither signed by the “deponent” nor

attested to by a commissioner of oaths. All 34 pages were filled in by an

unknown person apparently in the offices of J.H. van der Merwe Inc.

11.The applications in bundle 1 of the documents presently before the

Committee were, with the exception of Mr Mthembu’s application, only

submitted during January and February 1998.

12. It is therefore submitted that, as at 30 September 1997, applicants 1 to 15

had failed to submit their applications to the Commission in the prescribed

form.

See in this regard, Williamson v Schoon 1997(3)SA 1053 (T) at 1071

B-C.

13. As at 30 September 1997, applicants 1 to 15 had failed to state, under oath

or otherwise, inter alia:

13.1 the act/s, omission/s or offence/s associated with a political objective

in respect of which each of them was seeking amnesty;

13.2 the name/s of any other person/s involved in the said act/s,

omission/s or offence/s;

13.3 the political objective sought to be achieved by such act/s,

omission/s or offence/s;

13.4 their justification for regarding such act/s, omission/s or offence/s

as act/s, omission/s or offence/s associated with a political

objective;

13.5 whether the said act/s, omission/s or offence/s were committed in

the execution of an order of, or on behalf of, or with the approval

of the organisation to which each of them belonged; and

13.6 the particulars of such order or approval, the date thereof and, if

known, the name and address of the person/s who gave such

order or approval.

14.lt is therefore submitted that applicants 1 to 15 failed to comply, either

substantially or at all, with the requirements of section 18 of the Act.

See, in this regard, Administrator. Transvaal v Husband 1959(1) SA

392(A) at 394 C - D.

See also, Maharai and Others v Rampersad 1964(4)SA 638(A) at 646

C - D.

krj s«_; S 1s is ( T )

—'cx^ Cm) 53S(2.Xk)

- j t̂ \ S

_ c/2, 4

0^ 3<fO ^ ‘"St

The consequences of the failure of the applicatons to comply with the Arequirements of the Act

15. In Azapo and Others v President of the Republic of South Africa and

Others 1996(4)SA 671 (CC) at 618, para [9] Mohamed DP stated:

“The effect of an amnesty undoubtedly impacts upon very

fundamental rights. All persons are entitled to the protection of the

law against unlawful invasions of their right to life, their right to

respect for and protection of dignity and their right not to be subject

to torture of any kind. When those rights are invaded those

aggrieved by such invasion have the right to obtain redress in the

ordinary courts of law and those guilty of perpetrating such

violations are answerable before such courts, both civilly and

criminally. An amnesty to the wrongdoer effectively obliterates

such rights”. &i/JU la,

16. It is clear therefore that the granting of amnesty has a severly prejudicial

effect on the vested rights of victims. Any legislation which has the effect

of interfering with vested rights ought, it is submitted, to be restrictively

interpreted so as to minimise that interference.

Minister of Safety and__Security v Molutsi__ and— Another

1996(4)SA72(A) at 98 G -I ^ b k

$ V

17. Mahomed D.P. (as he then was), commenting on the consequences of

such interference stated that:

5

“ Every decent human being must feel grave discomfort in living

with a consequence which might allow the perpetrators of evil

acts to walk the streets of this land with impunity, protected in their

freedom by an amnesty immune from constitutional attack, but the

circumstances in support of this course require carefully to be

appreciated”.

Azapo v President of the RSA 1996(4) SA 671 (CC) at 683 I - J

18. The granting of amnesty was provided for in the epilogue to the interim

Constitution of 1993, subject to “the mechanisms, criteria and

procedures” of an Act of Parliament.

Azapo v President of the RSA 1996(4) SA 671 (CC) at 677 C - E

19. Section 3 of the Act sets out the objectives of the Commission. Section

3(1 )(b) provides that one of the ways of achieving the objectives of the

Commission shall be by:

“(b) facilitating the granting of amnesty to persons who make full

disclosure of all the relevant facts relating to acts associated with

a political objective and comply with the requirements of this Act”,

(emphasis added)

6

f

20. It is therefore clear that the three jurisdictional facts set out in section

20(1) of the Act are all required to be satisfied before amnesty can be

granted. If any one of them is not satisfied, amnesty cannot be granted.

21. It is submitted that the intention of the Act is clear in regard to a failure of

an application to comply with the requirements of the Act. Such a

failure results in the Committee being unable to grant amnesty.

\»~j S'?*)

22. It is further clear from section 3(1 )(b) and section 20(1) of the Act that the

requirement of full disclosure and the fact that the application must

comply with the requirments of the Act are two separate issues. Even if

there has been full disclosure but the requirements set out in section

18(1) of the Act have not been complied with, one of the three

jurisdictional facts will not have been satisfied and the Committee will

not have the power to grant amnesty.

23. It is therefore submitted that the Committee ought to refuse amnesty to

applicants 1 to 15 on the basis that their applications do not comply

with the requirements of the Act, more particularly section 18(1) thereof.

Dated at Johannesburg on this the 12th day of July 1998.

D.l. Berger

Victims’ court^iL) ^

C. H. Cambanis

Victims’ Attorney

7

TRUTH & RECONCILIATION COMMISSION

AMNESTY APPLICATIONS: QAMBELANI BUTHELEZI & 14 OTHERS

HEADS OF ARG U M EN T

1. The legal advisors appearing for victims of the Boipatong massacre have

indicated that they will argue that the applications filed by the Applicants

(excluding Applicant, Victor Mthembu) does not comply with the requirements

of the Promotion of National Unity and Reconciliation Act, No 34 of 1995

(hereinafter referred to as "the Act").

2. On behalf of the Applicants we appear for, it will be argued that the applications

were made in conformity with the requirements of the Act.

THE FACTS

3. The Applicants want to apply for amnesty for their part in the Boipatong

massacre that took place on the 17th of June 1992.

4. The Applicants were convicted and sentenced to various terms of imprisonment.

5. On the 9th of May 1997, application was made for amnesty on behalf of the

Applicants. This was done in the following manner: -

5.1 A covering letter dated the 9th of May 1997 was faxed by the Applicants'

attorneys, J H van der Merwe Inc, to the Truth and Reconciliation

Committee (hereinafter referred to as "the TRC"). The contents of the

letter, annexed hereto marked "A", speaks for itself and is not repeated

herein:

5.2 It is noted on this letter that 36 pages were faxed to the fax number

(021) 237-657. This is the fax number of the TRC situated in

Cape Town;

5.3 It is also indicated that apart from the faxed application, the applications

were sent by registered post;

5.4 It is common cause that the faxes were received by the TRC on either

the 9th of May 1998 or the 10th of May 1997. A date stamp of the

investigating unit of the TRC dated the 10th of,May 1997 appears on

these documents;

5.5 All 6 pages of Form 1 (the prescribed form) were not faxed to the TRC,

but only pages 1 and 6 of each documents. In total 36 pages were

faxed comprising of 17 applications times 2 pages and covering letter of

4

- 3 -

2 pages;

5.6 All 6 pages of the application were sent by registered post and

subsequently received by the TRC. These applications were received

before the extended cut-off date for amnesty application being the

30th September 1997.

5.7 In the covering letter it is stated: -

"U sal merk dat slegs die eerste en laaste bladsye van die

aansoekvorms sinvol voltooi is, en lees die antwoorde op

paragrawe 8 tot 12 almal 'will be submitted at a later

stage'."

5.8 It is to be noted that the method that was followed was discussed with

Adv Mpsha from the TRC. He seemed to be amenable to accept the

applications, regardless the procedure that was followed. The

application were registered and AM number were allocated to Applicants.

5.9 A letter dated 15 July 1997 was faxed by Applicants' attorneys to

the TRC, referring to a telephone discussion between writer and Adv

Blach {sic). In this letter (annexed hereto marked "B") names of the

Applicants are again given and dates for a possible hearing is discussed.

5.10

5.11

In a letter dated 10 November 1997 from the executive secretary -

amnesty, addressed to Applicants' attorneys, the following was stated: -

"Your office submitted these applications with insufficient

information and lacked details, a note that these will follow

at a later stage was attached, to date nothing has been

received from your office. They have however been

identified as matters to be dealt with at the hearings. The

fact that there is still outstanding information makes it

difficult to process them. For Mr S Khubeka's HRV

statement, please contact our JHB office."

At later dates (after the final cut-off date, being 30 September 1997)

completed forms were filed with the TRC. Forms were not filed on

behalf of Sithembiso Khubeka and Paulos Mbatha. The reason for this

was because according to Mr Khubeka's HRV statement he already filled

in an application form for amnesty and Mr Mbatha was seriously injured

and not available to sign a completed application.

- 4 -

5.12 Various other letters followed (available for inspection), including a letter

from the TRC asking for affidavits and further particulars.

Mr Wessel Janse van Rensburg of the Investigating Unit provided the parties

with copies of a few of the applications that were faxed and a few that were

received by registered post.

The assurance was given by the Chief Examiner that all of the original

documents are available, but for practical reasons was not faxed to Sebokeng

where this hearing takes place.

ACT

The applicable sections in the Act are the following: -

"18. Applications for granting of amnesty. -

(1) Any person who wishes to apply for amnesty in

respect of any act, omission or offence on the

grounds that it is an act associated with a political

objective, shall within 12 months from the date of

the proclamation referred to in section 7(3), or such

extended period as may be prescribed, submit such

an application to the Commission in the

prescribed form.

Committee shall consider applications for amnesty.

(1) Upon receipt of any application for amnesty, the

Committee may return the application to the

applicant and give such directions in respect of the

completion and submission of the application as

may be necessary or request the applicant to

provide such further particulars as it may deem

necessary.

(2) The Committee shall investigate the application and

make such enquiries as it may deem necessary.

Granting of amnesty and effect thereof.

(1) If the Committee, after considering an application

for amnesty, is satisfied that: -

(a) the application complies with the

requirements of this Act;

(b) the act, omission or offence to which the

application relates is an act associated with

a political objective committed in the course

of the conflicts of the past in accordance with

the provisions of subsections (2) and (3);

and

- 7 -

(c) the applicant has made a full disclosure of all

relevant facts,

it shall grant amnesty in respect of that act,

omission or offence."

9. The legal question that arose is whether the applications comply with the

requirements of the Act.

10. As starting point, it should be noted that Section 18 states that an application

to the Commission should be in the prescribed form. "Prescribed" in terms of

Section 1 of the Act is defined to mean "prescribed by regulation made under

section 40".

11. The relevant portion of Section 40 reads as follows: -

"(1) The President may make regulations -

(a) prescribing anything required to be prescribed for

the proper application of this Act;"

12. Form 1 was published as the prescribed form in the Government Gazette dated

9 February 1996, Number 16985. This form refers to Section 18 of the Act and

furthermore states "to be completed in block letters, sworn to/solemnly affirmed

before a commissioner of oaths and returned to the Committee on Amnesty..."

13. It is clear that the application forms were not completed, in fact only pages 1

and 6 were faxed through and they weren't signed by the Applicant and

therefore not sworn to or solemnly affirmed.

14. The faxed documents were however part of the prescribed form. To that extent

the requirements of the Act were met. The question that arose is if the said

requirements of Section 18 of the Act, read with the instructions on Form 1

itself, were met. It is common cause that the applications weren't signed by the

Applicants and thereforthe requirement in this regard, stipulated on Form 1 was

not met. Is this a fatal defect or not? To answer this question it should be

determined if the requirements are peremptory or directory.

LEGAL QUESTIONS AND PRINCIPLES

15. Is the requirement of Section 18 to "submit such an application to the

Commission in the prescribed form" peremptory or directory?

16. The test to establish if a provision is peremptory or directory is given in Pio v

Franklin N.O. and Another 1949(3) SA 442 at 451 CPD: -

"I turn now to the main point which was argued, namely, that the

provision that the voters' list 'shall be drawn up before the 15th of

May in each and every year" is peremptory, and that a failure to

comply therewith means that the Board will, unless it obtains relief

under section 67, not be able to frame a voters' list for that year."

In Leibbrandt v SA Railways (1941 A.D.9 at p 12) De Wet, C J,

said that

'it is impossible to lay down any conclusive test as to when

a legislative provision is directory and when it is

peremptory'.

He quoted with approval the statement of Lord Campbell in

Liverpool Bank v Turner (30 L.J. Ch. 379) which was recently

again quoted with approval in Vita Food Products v Unus

Shipping Co. (1939, A.C. 277 P.C.):

'No universal rule can be laid down for the construction of

statutes as to whether mandatory enactments shall be

considered directory only or obligatory with an implied

nullification for disobedience. It is the duty of the Courts

of Justice to get at the real intention of the legislature by

carefully attending to the whole scope of the statute to be

considered.'

In Sutter v Scheepers (1932, A.D. 165 at pp 173, 174), Wessels,

J.A. suggested 'certain tests, not as comprehensive but as useful

guides' to enable a Court to arrive at that 'real intention'. I would

summarise these as follows:

(1) The word 'shall' when used in a statute is rather to be

considered a peremptory, unless there are other

circumstances which negative this construction.

(2) If a provision is couched in a negative form, it is to be

regarded as a peremptory rather than a directory mandate.

(3) If a provision is couched in positive language and there is

no sanction added in case the requisites are not carried

out, then the presumption is in favour of an intention to

-11 -

make the provision only directory.

(4) If when we consider the scope and objects of a provision,

we find that its terms would, if strictly carried out, lead to

injustice and even fraud, and if there is no explicit

statement that the act is to be void if the conditions are not

complied with, or if no sanction is added, then the

presumption is rather in favour of the provision being

directory.

(5) The history of the legislation also will afford a clue in some

cases."

17. See also Feinberq v Pietermaritzburg Liquor Licensing Board 1953(4) SA 415

AD at 419G - H: -

"The next point that arises is whether the provisions of sec. 31(2)

are peremptory or merely directory. The question whether a

statutory requirement is peremptory or directory has been

discussed in a number of cases in this Court, the latest of which

is Messenger of the Magistrate's Court, Durban v Pillay, 1952(3)

SA 678 (AD). In that case, as in this case, the word 'shall' in the

English version, appears as 'moet' in the Afrikaans version. At

- 12 -

p 683 my Brother Van den Heever said: -

'The Afrikaans version has the categorical imperative

'moet. If a statutory command is couched in such

peremptory terms it is a strong indication, in the absence

of considerations pointing to another conclusion, that the

issuer of the command intended disobedience to be visited

with nullity'.

As was pointed out in Pillay's case at p 682:

/'The cardinal rule is still that stated in Standard Bank v

Van Rhyn, 1925 AD 266 at p 274: 'After all, what we have

to get at is the intention of the Legislature'."

18. It is submitted on behalf of the Applicants that these requirements are only

directory. The reasons for this submission are the following: -

18.1 18.1.1 The word "shall" in Section 18 refers to the time period

and not to the prescribed form. See Maharaj and Others

v Rampersad 1964(4) SA 638 (A) at 645E:

"That a regulation can in part be directory

- 13 -

18.2

and in part peremptory has on more than

one occasion been recognised in this Court

n

18.1\2 The word "shall" does in any event not necessarily have

an imperative connotation.

See: Blau v Lampert & Chipkin NNO and Others

1973(1) SA 1 AD at 9F.

"It is only necessary to add that the use of

the word 'shall' does not necessarily have an

imperative connotation."

18.2.1 Section 18 should be read with Section 19. Section 19

refers to "any application" (my underlining). The reference

to "any” in this section does not only refer to an application

properly completed and signed in the prescribed form, but

also to applications on the prescribed form which have not

been properly completed or to applications not even on the

prescribed form or even to applications on the prescribed

form but not signed as required. By using the word "any"

the intention of the legislature is made clear to include all

applications. If the intention was to limit the ambit of

Section 19 only to applications on the prescribed form, one

would have expected Section 19 to read: -

"Upon receipt of an application in the

prescribed form for amnesty..."

The golden rule when it comes to interpretation of an Act

is that the plain meaning of the word should be given to it.

The meaning of "any" is quite clear. Only if there is an

ambiguity or if the plain meaning leads to an absurdity, the

intention of the legislature will become relevant.

"Any area" was found in Birch v Klein Karoo Agricultural

Co-Operative Ltd 1993(3) SA 403 AD to mean the whole

of the Republic of South Africa. Similarly "any application"

means not only applications on the prescribed form or

applications on the prescribed form signed and sworn by

the Applicants, but means exactly what is says, to wit "any

application". That would include applications made by a

person properly mandated to do so on behalf on another.

In the interpretation of acts harsh results should be

avoided. There should be benevolent interpretation in

- 15 -

favour of individuals whose rights are restricted. To refuse

the Applicants' applications, their rights will be restricted.

See: Von Wielliqh v Mimosa Inn (Ptv) Ltd

1982(1) 717 AD.

18.3 When Section 19 is interpreted, it becomes abundantly clear that the

Committee may return the application to the Applicant and give such

directions in respect of the completion and submission of the application.

It is envisaged that documents received by the Committee may be

incomplete and for that matter not even on the prescribed form. It

seems to be the intention of the legislature to provide for situations

exactly like that of the Applicants.

18.4 On Form 1 itself it is required that the form should be completed in block

letters. This certainly cannot be peremptory and therefore an indication

that the requirements are directory.

18.5 The background and circumstances under which this Act was legislated,

is also of some importance to establish the intention of the legislature

which intention again becomes relevant to decide if the wording of

Section 18 is peremptory or directory. Reference should be made to the

preamble when the relevant sections are interpreted. The purpose of the

Act is to afford people the opportunity to apply for amnesty. A

- 16 -

peremptory interpretation of the latter part of Section 18, will militate

against such intention.

See: SA Onderiinqe Brand Versekeringsmaatskappy v Benade

1980(1) SA 539 CPD at 544E and 545A: -

"So 'n gebiedende vertolking druis in teen die hele

oogmerk van die wet en enige beperkende bepalings moet

dus streng uitgele word."

"Na my mening is die voorskrifte van reg 10(1)(b) al is dit

gebiedend in vorm siegs aanwysend van aard. As dit

anders sou wees dan sou die oogmerk van die Wetgewer

om 'te verseker dat vergoeding betaal word vir sekere

verlies ofskade wat onregmatiglik deurdie bestuurdervan

sodanige motorvoertuie veroorsaak word verydei word

in die geval van seker passasiers wat teen vergoeding

vervoer is."

18.6 There is no prejudice to anybody if the applications are accepted in

incomplete form .||

See: K & P Contractors v Standerton Town Council 1963(1) SA

405 TPD at 407C - E: -

- 17 -

"I therefor concluded, limiting my finding for the purpose of

this judgment merely to this specific portion of reg. 18, that

the terms of the last sentence relating to the dating and

signing of opened tenders are directory and not imperative.

Though the mere non-observance per se of the directions

of reg. 18 in the respects referred to does not mean that

the acts done in contraventions were calculated to cause

prejudice to the aggrieved party, unless the Court is

satisfied that no prejudice in fact supervened. (See

Feinstein and Another v Taylor and Others, 1961(4) SA

554(W) at p 561; Jockey Club of South Africa v Feldman,

1942 AD 340 at p 359)."

See also: Commercial Union Assurance Co Ltd v Clark 1972(3) SA

508 at 516F - 517E: -

"This Court went on to hold that, although the claimant's

letter of notice was not a model of precision, the

Administration had no substantial grounds for raising

objection thereto. The basis of the decision compliance

was regarded as sufficient. This Court expressly said so,

in Rondalia Versekeringskorporasie van Suid-Afrika Bpk.

- 18 -

v. Lemmer, 1966(2) SA 245 AD at p 258F -

'Dis duidelik dat hierdie Hof in daardie saak die

bepaling van die Ordonnansie as aanwysend, en

die wesentlike nakoming daarvan as voldoende

beskerm het"

...The basic test, in deciding as to the imperative nature of

a provision, is whether the Legislature expressly or

impliedly visits non-compliance with nullity. See Northern

Assurance Co Ltd v Somdaka, 1960(1) SA 588 AD at p

594C; S v Khan, 1963(4) SA 897 AD at p 900B; Essack

v Pietermaritzburg City Council and Another, 1971(3) SA

946 AD at p 952A-C. In applyin that test, 'each case must

be dealt with in the light of its own language, scope and

object and the consequences in relation to justice and

convenience of adopting one view rather than the other1 -

per Schreiner J A in Charlestown Town Board and Another

v Vilakazi, 1951(3) SA 361 AD at p 370. As to that, the

starting point is that: -

'the intention of the Legislature as revealed in the

Act read as a whole and as expressed in sec 11(1)

- 19 -

in particular was to give the greatest possible

protection to third parties' - per Ramsbottom, JA in

Aetna Insurance Co. v Minister of Justice, 1960(3)

SA 273 AD at p 286E."

19. If it is found that the "prescribed form" requirement in Section 18 is only

directory then it is submitted that the applications of Applicants are not null

and void.

See: Die Uitleq van Wette. L C Steyn, 5de uitgawe op 201 & 202:

"Ten slotte moet herhaal word dat indien bevind word dat 'n

voorskrif bloot aanwysend is, nie-nakoming daarvan nie tot

nietigheid lei nie. Ons howe het egter al by geleentheid daarop

gewys dat 'n wesenlike nakoming somtyds nodig is, en dat

nietigheid ook in sommige gevalle kan volg indien die nie-

nakoming bereken is om nadeel te berokken, tensy die hof

tevrede gestel word dat geen feitelike nadeel berokken is nie.

Omgekeerd lei nie-nakoming tot gebiedende voorskrifte

gewoonlik, soos hierbo gestel, tot nietigheid. Somtyds egter,

word ook in hierdie verband slegs sogenaamde 'wesenlike'

nakoming vereis, maar dit word in oorweging gegee dat die

korrekte standpunt gestel is in Maharaj and others v Rampersad

1964 4 SA 638 (A) 646C e v waar verklaar word:

'The enquiry, I suggest, is not so much whether there has

been 'exact', 'adequate' or 'substantial' compliance ... but

rather whether there has been compliance therewith. This

enquiry postulates an application of the injunction to the

facts and a resultant comparison between what the

position is and what, according to the requirements of the

injunction, it ought to be. It is quite conceivable that a

Court might hold that, even though the position as it is is

not identical with what it ought to be, the injunction has

nevertheless been complied with. In deciding whether

there has been a compliance with the injunction the object

sought to be achieved by the injunction and the question

of whether this object has been achieved are of

importance. Cf. J.E.M. Motor Ltd. v. Boutle and another,

1961 (2) S.A. 320 (N) at pp. 327-8 ...'

Verder kom dit voor dat 'n wet soms uitdruklik bepaal dat

nietigheid nie volg by afwesigheid van wesenlike benadeling nie."

It is further submitted that, in view of the fact that Form I, the prescribed form,

was used when application was made, that there was substantial compliance

with the requirements of the Act.

21. When this Act is interpreted, one can look at what was decided in situations

similar to this one. It is required by the Act that a MVA13 form should be set

out in a manner prescribed by the regulations. The Court in Nkisimane and

Others v Santam Insurance Co Ltd 1978(2) SA 430 (A) at 435A - G held that

£ this requirements is directory and that substantial compliance therewith is both

necessary and sufficient.

22. Reference to these MVA cases can also be misleading in that that Act doesn't

have a similar section to Section 19 of the Act. It is submitted, as set out

above that even if it is to be found that the requirement in section 18 in relation

to the prescribed form is peremptory or that there wasn't substantial

compliance, then Applicants can rely on section 19 standing on its own.

23. Information contained in other documents (like the covering letter sent with the

applications) can be taken into consideration when substantial compliance is

considered.

See: Haai v Commercial Union Assurance Co Ltd 1986(2) 209 NKA

at 214 J: -

' "Vierdens kart besonderhede wat voor die MVA 13-vorm voltooi

is aan die versekeraar verstrek is en besonderhede wat saam

-21 -

-2 2 -

met die voltooide MVA 13-vorm aan die versekeraar gestuur is

tesame met besonderhede wat daama deur die versekeraar

ontvang is wel in ag geneem word om te bepaal ofdaar wesentiik

voidoening aan die vereistes is. Sien Shield Insurance Co Ltd v

Booysen 1979(3) SA 953 (A) op 961C - D."

24. Applicants didn't sign the original faxed applications. This was signed by their

attorney on their behalf. Although not signed, the intention of the Applicants to

apply for amnesty was made clear.: There can be no prejudice to any party and

therefore the application should not be ruled to be null and void. That one

person, if mandated to do so, can sign for another is trite law. If the existence

of the respective mandates remains an issue, oral evidence may become

necessary. It may even not be necessary in that a mandate can be given

tacitly and can even be ratified retrospectively - either explicitly or tacitly. The

mere fact that the Applicants arrived at the hearings show their intention to

ratify the application made on their behalf.

See: De Wetand Yeats, Kontraktereq en Handelsreq, 4th edition, p 99.

"Magtiging is 'n wilsverklaring deur een persoon dat hy 'n ander

met die bevoegdheid beklee om hom by die aangaan van

regshandelinge te verteenwoordig. Dit is 'n eensydige

regshandeling waardeur die volmaggewer die meganisme skep

vir die bewerkstelliging, verandering en uitwissing van

regsverhoudings tussen hom en 'n derde deur tussenkoms van

-23 -

die gevolmagtigde."

See also p 101: -

"Indien iemand 'n ander in 'n betrekking aanstel of 'n taak aan

hom opdra, kan hy hom natuurlik ook met volmag beklee om die

kontrakte namens hom te sluit, en dit kan selfs stilswyend

geskied."

See also p 103: -

"Tree iemand sonder volmag namens 'n ander op, skep hy

daardeur geen regsverhoudings tussen die verteenwoordigde en

die derde nie. Die verteenwoordigde kan egter die optrede van

die verteenwoordiger bekragtig en daardeur die ontbrekende

volmag as't ware aanvul. Bekragtiging is 'n wilsverklaring

waardeur die verteenwoordigde te kenne gee dat hy die optrede

van die verteenwoordiger aanvaar. Soos enige ander

wilsverklaring kan dit uitdruklik in woorde of stilswyend deur

gedrag gemaak word. Bekragtiging is 'n eensydige

regshandeling."

25. If Mr Khubeka's other application can't be located, he can rely on the

application sent in on his behalf. He similarly has ratified his attorneys

- 24 -

application on his behalf.

26. It is submitted that in terms of Section 20, the committee must be satisfied that

the applications comply with the requirements of this Act. By accepting the

faxed applications and by taking further steps like asking for affidavits, further

particulars and setting the applications down for hearing the committee, was

satisfied, alternatively the Committee waived their right to require compliance

with the Act.

See: Bezuidenhout v AA Insurance Association 1978(1) SA 704 AD

at 711: -

"Notwithstanding the weight which is due to the unanimous view

of four Judges of the Eastern Cape Division, I have, nevertheless,

come to the conclusion, for the reasons stated above, that whilst

the language of sec 24(2)(b)(i) of the Act is undoubtedly

peremptory, the requirement thereof is such only at the instance

of the authorized insurer and may be waived by it."

27. The requirement in Section 18 of the Act is such only at the instance of the

Committee and may be waived by it.

28. It is therefor submitted that the application by the legal advisor of the victims

should be refused and the Applicants should be afforded the opportunity to

continue with their amnesty applications.

DATED at JOHANNESBURG on this 12th day of JULY 1998.

R STRYDOMCHAMBERS

06/ 07/ 1=98 15:33 • o-j/avi'sa/ ib:sa

17-21-222221812- 323-7537

TRC:AMNESTY NELL KQT VAN JYK

J j l j h v a n d e rPROKUREURS

R*$dnu»aaiafr WflJJlJfll

Hamilton Fomrgefaou, Tweedeverdiepuig

HamilJtmttraal 140, Arcadia, Priori# 0083Posbus 9400 Pretoria 0007

Tel (C12) J26-0503

Fak* (012) 326-0593

1997-05-09

Die Strecbifcestuurdcr

Waarheid* en Versoemr.gskomrnissie

Amnestiekomitee

Posbus3162 Kaapstad 8000

A ^ S O E K OM AMNESTIE

Ons rig hierdie skrywe aan u rmrnens die ondergetrcldc sewcotien kiiente.

Ons kKfcnte is almaJ skuldig bcvjnd op Jdagtes random die sogetmmde Boipetong -

s!agting , en is tans bcsig om tocn die hof sc uitspr&ak te apelleer. Vind nou hierby

aangeheg nuisoeke om amnestie nametts die volgende per tone ;

I. Qamb«leni Buthclezi, •./2. BbekinJfcs Mbhekiscni Mkhize , l/

3, Tebogo Magiibanc, ^

4, Petrus Mdiniso, t/

5. Srthembiso Khubeka

6. Mxoliseni Sibongeleni Mkhize ; „

7. Vincent Kiunyile ;v

8. Sipho Buthelezi;

9. Timothy Stals Mazibuko

10. Paulos Mciksbrri Mbatha, J11. Jack M bdb; v

™ " X £ g a s »097 -05- t u

PER GEREGISTREERDE POS PER FAKS • ( 021) 237 - 657

— ........ - ■ ■ -- --- ---------------------- ,»̂ ....

Dtrcicuur JJkCOlL J H M C IX E S VAN D U ) M2JKVE BA (Hhm) f t ,

B y j to t n <«ar H A TfRO W llittLM FSIEDWCH BfjCLLB

0§/07/1998 15:33 27- 21-222221vn#a<i:3' ii'.JB /bS/

TRC:AMNESTY

NELL K0T2S VAN 2YK

PAGE

PAGE

12 Sonny Michael Mkwa^asd; <✓

13 VictorMthembu; \ !14 Thomas Makhehleni Lukhozi; V"*15. RichardDlamini ,\J16, Moses Mthwnbu ; \ j17 , Mhlupheld Samuel Tshabangu \ J

U sal merk dat slegs die eerste er laaste bladiye van die aansoekvorm sinvd voltooi is , «n

lees die antwoorde op pvagrawe 8 tot 12 alraal; “ will be submitted at a later stage “ .

Die rede daan oor is omdat ons nie instaat is om persooniik met oris kliente te korttak voor

die afsnydatum nie . Dit is ook die rede wtarom die verms me dew hulle be£dig is nie .

Ons hoop egter om die uitstaande inligting eersdaags aan u te kan voorsien .

Om bevestig dat die mdiening van hierdie aansoeke besprcck is met advokaat Mpsha van

u karrtore , en dank u byvoorbaat vir u bcrddwiOisheid om ons klifinte in die verb and tegemoet te kom .

Die uwe

J H VAN DER MERWE

J H v a n d e r M e r w e I n g e l y f:; (i ; ■. ' ' C n M-'

kcgiamienommia- %. 05 512/21

Hamilton Foramgebou, Tweedeverdicping Pusbus s>400 Tel (012) .126-050.1

Humillonslruilt 140. Arcadia. Pretoria 00X3 Pretoria 0007 Faks (012) 126-059.)

15 July 1997

Truth & Reconcrfiation Commission

BY FAX ; [021] 233-280

kRef. Adv Blacka

RE : AMNESTY APPLICATIO' i OF BOiPATONG CLIENTS

The telephonic conversation between writer hereof and your Adv Blach on the 14th July 1 997 refers.

We herewith provide you with the names of our clients who have applied for amnesty :

1. Qarnbeleni Buthelezi2. Bhekinkosi Mbhekiseni Mkhize3. Tebogo Magubane4. Petrus Mdiniso5. Sithembiso Khubeka6. Vincent Khanyile7. Sipho Buthelezi8. Timothy Stals Mazibuko9. Paulos Mcikeleni Mbatha10. Jack Mbele11. Sonny Michael Mkwanazi12. Thomas Makhehleni Lukhozi13. Richard Dlamini14. Moses Mthembu15. Mhlupheki Samuel Tshabangu.

DiieUtm .lAUWtt.S IIKKt l l.K.S VAN lW tt MRKWK BA <U«n») Pro*

|j , . t ......... .. d .- .r IfA N ttt) W lIillF.T.M IH lK tm iC U B U . T.I.B

* OCT-28-1397 TUE 15:04 ID:WELL KCTZE VAN DVK TEL: 012 3237637 P: 02

«

- 2 -

We also herewith wish to inform your thnt h hearing date of 11 August 1997 has been placed before us informally. We would not be in a position to act on behalf of any of our clients on such an early date and would appreciate a postponement of the hearing to either late in 1997 or early in 1998.

We await your reply.

Yours faithfully^

J H VAN PER MERWE

• : )

Collection Number: AK2672 Goldstone Commission BOIPATONG ENQUIRY Records 1990-1999 PUBLISHER: Publisher:- Historical Papers, University of the Witwatersrand Location:- Johannesburg ©2012

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